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Document   No.  28. J  [Session  lb69-70. 


Ordered  to  be  Printed. 


REPORT  OF  THE  CODE  COMMISSIONERS. 


RAr.KKiii,  Marcli  l^tb,  1ST<>. 

To  the  Hun.  Tud  R.  Caldwell, 

TJeutenant  Governor  and  President  of  the  Senate  : 

Sir  :  The  Commissioners  of  the  Code  have  the  honor  to 
report  to  the  General  Assembly  that  tliey  have  nearly  reached 
the  end  of  the  labors  which  were  inn>osed  on  them  by  the  Con- 
vention of  1S6S, 

The  constitution  adopted  by  the  people  in  that  year  made 
radical  chan<ies  in  the  fundamental  law  in  some  most  important 
particulars. 

1.  It  abolished  courts  of  equity,  and  all  dilt'erence  in  the 
forms  of  actions. 

2,  It  ])rohibited  the  old  and  introduced  a  new  system  of 
punishment. 

'3.  It  created  a  number  of  public  officers  whose  duties  had  to 
be  defined, 

4.  It  required  that  corporations,  both  municipal  and  private, 
should,  except  in  pe(niliar  cases,  be  chartered  by  i»-eneral  laws. 

5.  It  essentially  altered  the  common  law  relations  of  husband 
and  wife,  by  makiii;:;  all  the  property  of  the  wife  separate. 

Such  comprehensive  chatiiies  in  accustomed  law  have  rarely 
been  enacted  in  so  short  a  time.  Some  of  them  at  least  may 
be  justified  upon  the  gn^uiul  that  a  great  revolution  had  oc- 
curred, as  a  result  of  which  society  stood  on  u  new  basis  and 
required  different  laws  from  those  which  were  appropriate  to 
the  stage  which  had  perished.  Others  must  stand  upon  their 
intrinsic  merits.     What  these  are  it  is  no  part  of  our  duty  to 


s 

2      C  ^4  b  ^  Document  No.  28.  [Session 

decide ;  time  alone  can  give  a  positive  answer.  For  the 
changes  made  by  the  constitution  tlie  Commissioners  are  no 
wise  responsible ;  we  took  tliem  as  accomplished  facts  ;  and 
our  duty  was  as  skillfully  and  as  prudently  as  we  could  to 
brins  the  law  of  the  State  into  harmony  with  them.  It  was 
evident  that  until  that  was  done,  there  would  exist  an  anarchy 
and  contusion  of  jirivate  rights  scarcely  compatible  with  peace 
and  order  and  incompatible  with  public  happiness  or  pros})erity. 
Tlie  old  system  of  procedure  in  civil  actions  was  abolished  ; 
and  until  a  new  one  was  supplied,  there  were  no  means  by 
which  a  private  controversy  could  be  determined,  or  an  ac- 
knowledged right  enforced  ;  the  State  was  practically  without 
law. 

Sensible  of  the  danger  arising  from  tin's  state  of  things,  in 
a  very  few  months  the  Connnissioners  presented  to  the  General 
Assembly  a  Code  of  Civil  Procedure  which  met  your  sanction. 
It  was,  we  humbly  conceive,  the  best  that  could  have  been 
framed  in  obedience  to  the  constitution.  At  first  this  code  was 
unacceptable  to  tlie  bench  and  to  the  bar,  as  all  changes  must 
be,  but  we  believe  it  has  i^ained  in  the  favor  ol  both.  For 
over  eighteen  months  justice  has  been  administered  under  it 
in  civil  actions  without  complaint.  Wliile  we  ourselves  can- 
didly admit  its  imperfections  in  some  respects,  we  think  its 
greatest  enemies  will  admit  that  it  has  some  merits  over  the 
former  system.  However,  whatever  may  be  the  merits  or  de- 
merits of  the  new  system,  all  calm  men  must  admit  that  a  re- 
turn  to  the  old  is  impossible.  The  onl}-  resource  is  to  improve 
and  amend  the  new.  We  believe  that  duty  can  now  be  much 
better  performed  by  the  Courts  than  it  is  likely  to  be  by  the 
Legislature,  and  therefore,  witli  the  exceptions  of  some  correc- 
tions of  misprints  and  clerical  mistakes,  we  have  not  presented 
to  tlie  honorable  General  Assembly  any  proposals  for  a  sub- 
stantial amendment  of  the  Code  of  Civil  Procedure. 

As  an  essential  complement  to  the  changes  made  by  the 
Constitution,  we  have  presented  to  your  honorable  body  at 
this  session  a  Code  of  Crimes  and  Punishments.     The  subject 


J 


186l)-'TO].  Document  No.  2S.  3 

is  one  of  great  importance  ;  the  lives  of  men  may  depend  on  a 
phrase.  We  have  given  it  great  consideration,  but  in  viev^  of 
its  importance  we  do  not  recommend  to  your  honorable  body- 
its  adoption  ;tt  the  present  session.  We  prefer  that  it  shall 
await  the  (juiet  and  repeated  consideration  of  those  best  com- 
petent to  pass  on  its  merits. 

We  liave  also  at  this  session  submitted  a  Code  ot  Criminal 
Procedure,  (renerallj,  it  is  a  mere  digest  of  the  present  law 
as  shown  by  our  statutes  or  decisions  ;  the  few  changes  made  in 
the  present  law  we  think  important.  We  recommend  the  early- 
passage  of  this  most  important  statute.  AVe  have  submitted 
it  to  the  bar  of  the  State  and  so  far  have  received  a  criticism 
upon  one  point  only,  viz :  the  authority  of  the  Solicitor  to 
enter  a  nol.  pros.  The  Solicitors  desire  to  retain  the  author- 
ity. The  opinion  of  the  bench  and  the  bar  is  against  them, 
and  confirms  our  proposition  in  that  Code.  We  have  there- 
fore to  ask  the  consideration  of  your  honorable  body  to  that 
Code,  and  we  think  we  are  justified  in  saying  it  meets  the 
appi'oval  ot  all  competent  judges. 

The  bill  which  we  prepared  regulating  the  duties  of  the 
various  public  officers  throughout  the  State,  met  your  appro- 
bation and  is  a  part  of  our  law. 

These  acts,  with  many  others,  such  as  those  concerning  the 
settlement  of  the  estates  of  deceased  j^ersons,  guardian  and 
ward,  landlord  and  tenant,  fences,  draining  low  land,  Arc, 
prescribing  just  rules  and  convenient  modes  of  procedure  in 
all  these  important  subjects,  form  a  body  of  law,  the  enactment 
of  which  will,  for  at  least  a  century  to  come,  mark  an  era  in 
our  history.  We  may  be  permitted  to  believe  ihat  this  body 
of  lav,-,  by  tlic  certainty  and  economy  it  has  introduced  into 
the  administration  ot  justice,  has  saved,  and  will  save,  millions 
of  dollars  which  would  otherwise  have  been  spent  in  unncccs-* 
sary  legislation,  and  will  go  far  to  compensate  the  people  of 
North  Carolina  for  all  their  losses  of  property  in  the  late  disas- 
trous war.  This  General  Assembly  may  appeal  to  those 
statutes  as  a  vindication  from  any  charges  that  may  be  made 
.against  it  because  of  prolonged  and  exj)cnsive  sessions. 


767RfiI) 


4  DocuMKNT  No.  2s.  [Ses.  lS69-'70. 

It  is  said  of  a  certain  obscure  and  l)adlj  drawn  English 
statute  (of  frauds,)  tlmt  every  line  of  it  has  cost  the  people  of 
Euijjland  a  million  of  pounds  in  gettini^  it  interpreted  by  the 
courts.  If  this  General  Assembly  had  done  nothinsr  else  but 
to  enact  those  statutes,  we  feel  at  liberty  to  say  that  in  our 
opinion,  the  work  would  ha\-e  been  worth  the  M'hole  cost  of 
your  sessions.  It  will  Ite  a  source  of  pride  to  you,  in  which 
we  may  be  permitted  to  sliare,  tl):it  your  names  are  forever 
connected  with  such  just  and  useful  legislation. 

But  two  of  the  fijreat  subjects  embraced  within  our  duties 
remain  untouched  ;  a  general  corporation  law,  and  one  detining 
the  powers  ol  married  won-ien  over  their  separate  j^roperty. 
Besides  that  the  Constitution  positively  commands  the  first, 
its  necessity  is  obvious.  Much  of  the  time  of  the  General 
Assembly  at  every  session  is  occupied,  at  vast  expense  to  the 
people,  in  considering  special  acts  relating  to  private  or  other 
corporations,  which  would  be  saved  by  a  general  act.  As  to 
the  second  subject,  probably  few  have  as  yet  realiijed  the  dan- 
gerous uncertainty  and  confusion  of  the  law  at  present  affecting 
it.  No  one  can  say,  witli  certainty,  what  contracts  a  wife  may 
or  ma}'  not  make,  nor  how  far  her  husband  may  be  bound  by 
her  acts.  We  propose  to  present,  for  your  cotjsidt^ration  at 
your  next  meeting,  bills  on  these  two  important  subjects.  We 
shall  also  have  ready  tlien,  to  submit  to  you,  the  complete 
compilation  of  all  the  laws  respecting  internal  improvements, 
in  which  the  State  has  an  interest,  which  we  were  directed  to 
prepare  by  a  resolution  passed  at  your  last  session,  but  which, 
imfortunately,  did  not  come  to  our  knowledge  until  too  late  to 
prepare  it  for  your  present  session.  We  shall  also  submit  to 
you,  at  that  time,  a  codification  ol"tho  whole  statute  law  of  the 
State,  arranged  in  convenient  form  for  reference,  ami  making 
a  single  volume  about  the  size  of  the  Revised  Code.  When 
this  shall  be  done  our  labors  will  have  finished. 
We  remain,  very  resi)ectfully. 

Your  obedient  servants, 

WILL.  B.  RODMAN, 
V.  C.  BARRINGER, 
A.  W.  TOURGEE. 


LRfi 


